997 F. Supp. 2d 1047

ROSENBLATT, District Judge,
concurring in part and dissenting in part:
I concur with the majority’s conclusions that the present action is justiciable, that Plaintiff has standing to bring it, and that Plaintiffs claims are not barred by the Arizona Voter Protection Act, and I join in those portions of the majority’s opinion. I also concur with the majority’s conclusion that Plaintiffs action is not barred by the doctrine of laches, although I believe that the issue can be resolved simply on the ground that laches cannot be appropriately applied to bar this action, no matter its procedural stage, given the public’s overriding interest in having the Elections Clause issue litigated and resolved.
I respectfully dissent, however, from the majority’s conclusion that the Elections Clause permits Arizona to use its lawmaking process to divest Plaintiff of its redistricting authority in the manner adopted by Proposition 106. I believe that the extent of Arizona’s delegation of redistricting authority to the Independent Redistricting Commission (“IRC”) extends beyond the state’s constitutional authority to do so, and I would declare that Proposition 106 violates the Elections Clause, art. 1, § 4, cl. 1 of the United States Constitution and that the congressional maps adopted by the IRC under that unconstitutional authority are null and void, and I would enjoin their use.
States have the authority to regulate the mechanics of congressional elections only to the extent delegated to them by the Elections Clause. Cook v. Gralike, 531 U.S. 510, 522-23, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001). Among the powers constitutionally delegated to them is the primary responsibility for the apportionment of their congressional districts. Growe, 507 U.S. at 34, 113 S.Ct. 1075. The Elections Clause mandates that the times, places, and manner of holding congressional elections “shall be prescribed in each State by the Legislature thereof!.]” It cannot be disputed that the Elections Clause’s reference to “the Legislature,” as that term has been interpreted by the Supreme Court, refers to the totality of a state’s lawmaking function as defined by state law, and that in Arizona a citizen initiative, such as that used to enact Proposition 106 to amend the state constitution, is an integral part of the state’s legislative process. But the fact that Arizona has appropriately used its initiative process to establish the IRC cannot be the end of the inquiry under the Elections Clause, as found by the majority, because it also cannot be disputed that any law passed by a state, whether through an initiative or referendum or directly by the legislature, must abide by the United States Constitution.
That the Supreme Court has concluded that the Election Clause properly permits a state to include some other state entity or official in the redistricting process as a limiting check on its legislature’s role in that process does not mean that the Elections Clause places no limit on a state’s authority to define the legislative process it uses to regulate redistricting. I find it instructive that the scant case law permitting non-legislature entities to participate in the redistricting process, for example Hildebrant, 241 U.S. 565, 36 S.Ct. 708, Smiley, 285 U.S. 355, 52 S.Ct. 397, and Brown, 668 F.3d 1271, all involved situations in which the state legislature participated in the redistricting decision-making process in some very significant and meaningful capacity. For example, in Hildebrant, the state legislature’s congressional redistricting act was rejected by the voters through a referendum; in Smiley, the state legislature’s congressional districts maps were vetoed by the governor; and in Brown, the state legislature created the congressional district maps based on guidelines for redistricting enacted through an initiative. In short, these cases all involved constraints on the ability of the state legislature to redistrict, and none directly held that the Elections Clause can be so broadly interpreted as to permit a state to remove all substantive redistricting authority from its legislature. Proposition 106 overreaches under the Elections Clause because the initiative’s acknowledged and undisputed purpose was to supplant Plaintiffs constitutionally delegated authority to redistrict by establishing the IRC as Arizona’s sole redistricting authority.
The majority notes that Proposition 106 does not entirely divest Plaintiff of its redistricting participation inasmuch as it permits Plaintiff to retain some ability to influence the redistricting process. The majority points out that Plaintiffs majority and minority leaders pick four of the five IRC members and that the IRC is required to consider any modifications to its draft redistricting maps suggested by Plaintiff. But such minor procedural influences must be evaluated in light of the fact that Proposition 106 requires Plaintiff to choose IRC members from a list selected not by it but by the state’s commission on appellate court appointments, and the fact that the IRC has the complete discretion not to implement any map changes suggested by Plaintiff. What Plaintiff does not havé under Proposition 106 is the ability to have any outcome-defining effect on the congressional redistricting process. I believe that Proposition 106’s evisceration of that ability is repugnant to the Elections Clause’s grant of legislative authority-

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